IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.6401/2017 (MV) Between:
V. Raghu S/o Venkataramanappa Aged about 31 years Vittalapura, Rantavalalu Post Doddri Hobli Tumakuru – 572 132 Presently r/at No.284, III Cross, I Block I Stage, Peenya Bengalooru – 560 058. ... Appellant (By Sri. M. Vinaya Keerthy, Advocate) And:
1. United India Insurance Company Limited 6th TP Hub, Krishi Bhavan Near Hudson Circle Nrupathunga Road Bengaluru – 560 001.
2. Narasimhaiah R/at No.86, K.S. Layout Chandranagar, Vijayanagar Bengaluru – 560 040 (Owner of Vehicle bearing Registration No.KA-04/D-2628) ... Respondents (By Sri. P.B.Raju, Advocate for R1 Notice to R2 dispensed with vide order dated 13.11.2017) This Miscellaneous First Appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 against the judgment and award dated 10.05.2017 passed in MVC.No.3092/2015 on the file of the II Additional Small Causes Judge and XXVIII ACMM, MACT, Bengaluru (SCCH-13), partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal is coming on for Admission, this day, the Court delivered the following:
J U D G M E N T This appeal is filed by the claimant seeking enhancement of compensation, wherein, the Court of II Additional Small Causes Judge and XXVIII A.C.M.M., Bengaluru in M.V.C.No.3092/2015 has awarded a compensation of Rs.2,58,700/- for the injuries sustained by him in a road traffic accident.
2. I have heard the learned counsel for the appellant and learned counsel appearing for the respondent No.1/Insurance Company.
3. It is the case of the appellant/claimant that, on 05.03.2015, at about 9.30 a.m., when he was proceeding on a two wheeler bearing Registration No.KA-22-S-2106 and when he reached near JJ Nagar junction, Binny Mill Tank Road, the driver of a lorry bearing Registration No.KA-04-D-2628 drove the said vehicle in a rash and negligent manner and dashed against the scooter. Due to the said impact, he fell down and sustained injuries all over his body. He was shifted to Victoria Hospital and treated as an inpatient. It is the further case of the appellant that he was aged about 28 years at the time of accident, working as a Security Field Officer earning a sum of Rs.15,000/- p.m. Due to the accidental injuries, he has suffered permanent disabilities, not able to work and he is depending on his family members for his food, clothing and shelter etc.
4. A total compensation of Rs.10,00,000/- was sought by the appellant before the Tribunal. Two witnesses were examined and Ex.P1 to P16 were marked on behalf of the appellant. On behalf of the respondent, the Insurance Policy was marked as Ex.R1.
5. The Tribunal after considering the oral and documentary evidence, awarded a total compensation of Rs.2,58,700/- under the following heads:
Loss of future earnings : ` 1,63,200=00 Conveyance, Nourishment Food & Attendant charges : ` 21,000=00 ` 2,58,700=00 ============= 6. Learned counsel for the appellant would contend that the total compensation awarded by the tribunal is inadequate and the same needs to be enhanced. He submits that the Tribunal has not properly considered the avocation and income of the appellant and also the disability suffered by him, in a proper and perspective manner. No compensation has been awarded towards loss of amenities. He would submit that the total compensation awarded is on the lower side and the injuries sustained by the appellant are permanent and therefore, impugned award is liable to be interfered with and submits that the award may be modified by enhancing the compensation.
7. Per contra, the learned counsel appearing for the Insurance Company would justify the compensation awarded contending that it is just and reasonable and no interference is called for. Accordingly, he prays to dismiss the appeal.
8. The accident in question involving the offending lorry bearing Registration No.KA-04-D-2628 and the actionable negligence on the part of driver of the said lorry is not disputed. The vehicle was insured with respondent No.1 herein.
9. It is the contention of the learned counsel for the appellant that the appellant was working as a Security Field Officer and he was earning Rs.15,000/- p.m. However, apart from the oral testimony of the appellant, there is no other convincing evidence to hold that he was earning Rs.15,000/- p.m. There is no other evidence to corroborate the evidence of PW.1. In that view of the matter, the notional income of the appellant, by considering the year of accident and facts and circumstances of the case, is taken as Rs.9,000/- p.m.
10. Ex.P13 is the Wound Certificate. Ex.P12 is the discharge summary. According to Ex.P13, the appellant had sustained degloving injury at Plantar surface of right foot-vessels and tendons exposed with active bleeding. He was admitted to the hospital on 10.03.2015 and discharged on 31.03.2015. Hence, he was an inpatient for a period of 21 days. Medical evidence on record also discloses that he has undergone plastic surgery. Ex.P14 is the photograph of the appellant.
11. PW.2 is the Orthopedic Surgeon, he has assessed the disability suffered by the appellant. After examining clinically, he has come to the conclusion that the appellant was having disability to the right lower limb at 45% and to the whole body at 15%. The Tribunal has assessed the disability at 10% to the whole body.
12. However, considering the evidence of PW.2 as well as the nature of injuries sustained by the appellant, I am of the view that the disability suffered by the appellant to the whole body may be assessed at 15%. The appellant was aged about 28 years at the time of accident and therefore, the appropriate multiplier is ‘17’. The appellant is therefore entitled for a total compensation of Rs.2,75,400/- (9,000 X 12 X 17 X 15%) as against Rs.1,63,200/- awarded by the Tribunal towards loss of future income due to disability. Considering the disability and period of treatment, the compensation awarded under the head ‘loss of earning during laid off period’ is enhanced from 24,000/- to Rs.27,000/-. The Tribunal has not awarded any compensation towards loss of amenities, therefore, a sum of Rs.25,000/- is awarded under the said head. A sum of Rs.21,000/- awarded towards conveyance, nourishment, food and attendant charges is enhanced to Rs.30,000/-. The Tribunal has awarded a sum of Rs.10,500/- towards medical expenses, which is based on the bills produced, the same is just and proper. The compensation awarded towards pain and suffering is enhanced from Rs.40,000/- to Rs.50,000/-. Hence, the appellant is entitled for a total compensation of Rs.4,17,900/- as against Rs.2,58,700/- awarded by the Tribunal. The break up is as under:
Pain and suffering : ` 50,000=00
` 4,17,900=00 ============= Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 10.05.2017 passed in M.V.C.No.3092/2015 on the file of II Additional Small Causes Judge and XXVIII ACMM, MACT, Bengaluru (SCCH- 13), is hereby modified.
The appellant is entitled for a total compensation of Rs.4,17,900/- with interest @ 6% per annum from the date of petition till the date of realization as against Rs.2,58,700/- awarded by the Tribunal.
Respondent No.1 is liable to pay the compensation and shall deposit the entire amount within a period of four weeks from the date of receipt of a copy of the judgment.
Sd/- JUDGE NR/-